66    Formal motions

1. At the time provided for formal motions the President shall inquire with respect to each motion of which notice has been given for the day, at the request of the senator who gave the notice, whether there is any objection to its being taken as a formal motion, and if no objection is taken by any senator, the motion shall be deemed to be a formal motion.

2. Formal motions shall take precedence of all other motions and orders of the day and shall be disposed of in the order in which they stand on the Notice Paper.

3. A formal motion shall be put and determined without amendment or debate.

Amendment history

Adopted: 19 August 1903 as SOs 66, 67 and 68 (corresponding to paragraphs (1) to (3))

Amended: 13 February 1997, J.1447 (to take effect 24 February 1997) (incorporation of 1994 reforms to routine of business)

1989 revision: Old SOs 70 to 72 combined into one, structured as three paragraphs and renumbered as SO 66; reference to orders of the day for the third reading of bills removed from paragraph (1), reference to divisions removed from paragraph (3) and expression brought into line with practice

Commentary

Formal motions were a feature of the Senate’s routine of business from the beginning, being added by way of amendment to the first sessional order adopted on 5 June 1901 providing for government business to have precedence over private business on particular sitting days, after questions and formal motions (see SO 59).[1]

Formal business is business that can be dealt with expeditiously provided no senator objects to the motion being put to the vote without amendment or debate. Where the practice existed amongst the colonial assemblies,[2] there were two ways of dealing with formal motions and these differences were apparent in the debate in 1901 on the precursor to SO 59. For some, the Victorians, for example, “formal motion” was synonymous with “unopposed motion”. Only supported motions could be fast-tracked using this procedure. The alternative, and prevailing, view was that agreement to treat a motion as a formal motion did not necessarily imply agreement to the substance of the motion. This was the practice in NSW and Queensland:

Senator DRAKE – Formal motion and unopposed motion, I understand, really mean the same thing.

Senator Major GOULD – But a formal motion may be voted against.

Senator DRAKE – It is a motion which by agreement is to be moved without debate. An honourable senator may vote against it, but may not debate it.

Senator Lt.Col. NEILD – Therefore “unopposed” is not a good term to use. Formal is the correct term.

Senator DRAKE – It is the term I prefer, but perhaps that is because it is the term I have been accustomed to. I presume that the standing orders will settle that, If we use the term “formal motion” I have no doubt that it will be adopted by the Standing Orders Committee.[3]

The Standing Orders Committee did not quite fulfil Drake’s expectations. It adopted the compound term “Formal or unopposed Business” along with the standing orders of the NSW Legislative Assembly (with appropriate adaptations) which specified that divisions could take place on formal motions. It was the process for dealing with the motion that was to be unopposed, not necessarily the substance of the motion. The compound terminology remained until the 1989 revision, which also removed obsolete references and aligned the expression with contemporary practice.

The 1938 MS records the practice for dealing with formal motions as it was in the 1930s. The President:

… refers to the Notice Paper, ascertains if there are any fresh Notices or Orders for third reading, and if so, he says – “Notice of Motion No. 1 (as the case may be) in the name of Senator –––––, is that formal or not formal?” If the Senator in whose name the Notice stands, or any other Senator, calls “Formal,” and no one calls “Not Formal,” the motion is dealt with at once. Similarly with regard to Orders for third reading.

If any Senator calls “Not Formal,” indicating that he wishes to debate the subject, a symbol is placed against that particular item of business on the Notice Paper, with a footnote “Objected to as a formal motion.”

… As no debate can take place, formal business is thus disposed of very rapidly.

Notices of motion are listed on the Order of Business (or Senate 'Red') to indicate which notices are eligible to be 'discovered' or fast-traced

The reference to orders for the third reading [of bills] is one of the obsolete references removed in the 1989 revision. Until the universal adoption of the expedited proceedings on bills provided for in SO 113, different stages of bills were dealt with on different days as required under the standing orders. Standing order 122 requires that when the report from the committee of the whole is adopted, a future day shall be set for the third reading. Although these provisions are not in use, they remain in the standing orders as the default position should the Senate reject a motion to deal with a bill under the expedited proceedings. However, the possibility of dealing with an order of the day for the third reading of a bill as formal business was removed as being redundant. Such an order could be voted on without debate in any case without needing to be characterised as formal business, and without needing to restrict the right of senators to debate the motion for the third reading of a bill excepted from the usual, streamlined method of proceeding under SO 113.

By the time of the 1989 revision, the President no longer called through, in the manner described by Edwards in the 1938 MS, each notice eligible to be treated as formal business. Instead, at the time for discovery of formal business,[4] the President ascertains whether there are any formal motions in the following terms:

“I shall now proceed to the discovery of Formal Business. Are there any formal motions?”

If a Senator asks for a motion to be taken as formal:

“Is there any objection to this motion being taken as formal? There being no objection, I call Senator .............. to move the motion”

When motion has been moved:

“The question is that the motion be agreed to”

The inclusion in the 1989 revision of the phrase, “at the request of the senator who gave the notice” signalled the shift in practice that has occurred. Rather than calling through every eligible notice, the President ascertains the will of the Senate to deal with motions as formal motions only in respect of those motions subject to a request from their mover.

This shift also means that paragraph (2) is not strictly observed. Rather than being disposed of in the order in which they appear on the Notice Paper, formal motions are disposed of in the order in which the Chair recognises senators standing to seek formality. There is invariably some informal scheduling of motions by the Chair in an attempt to deal with non-controversial matters first before dealing with motions which may be the subject of divisions, in which case the Chair usually warns senators to remain in the chamber if one minute division bells are likely.[5] Paragraph (2) is also subject to the qualification that discovery of formal business now occurs at the beginning of the day on only one out of four sitting days. On other days it occurs later in the routine of business after time specifically quarantined for government business (see SO 55).

Though subject of many affirmative rulings, paragraph (3) has also been undermined to a degree by the frequency with which leave is given for senators to move amendments to formal motions, amend their own notices before moving them, or to make statements about their own or other motions.

The reference in old SO 72 to divisions was removed from paragraph (3) in the 1989 revision because it was obsolete and redundant. A division may be called on any disputed question in accordance with SO 98. It is a fundamental right which cannot sensibly be constrained by reference to the nature of the question to be determined, unlike the right to debate or amend a motion, which may be subject to reasonable limitations.

Eligible motions for which no request for formality is made have no further opportunity to be treated as formal motions. The opportunity is spent unless the motion is postponed to another day (see SO 67). Any motion for which formality is denied remains on the Notice Paper unless otherwise dealt with. There is no further opportunity to “discover” it as formal business. If formality is denied, the category of business of a notice of motion determines whether it is likely to come up for debate in the normal routine of business later in the day. Because of their priority in the hierarchy, business of the Senate notices and government business notices are likely to be called on later that day but, because of the volume of business on the Notice Paper, general business notices of motion are unlikely to be reached at all.

The procedure for formal motions is an invaluable means of dealing in a timely manner with routine and uncontroversial matters, such as extensions of time for committee reports or authorisations for committees to meet in public when the Senate is sitting. Without formal business, some other procedure would be necessary to facilitate such business which would otherwise never be reached in the normal course of events. For more complex policy matters, however, the formal business procedure has occasionally been a source of dissatisfaction because of perceived misuse or overuse by some senators. Debates in the Senate[6] have highlighted the growing number of motions on complex and sensitive matters and the limitations of the formal business procedure as a blunt instrument for dealing with these matters.

If a general business notice of motion is denied formality, the senator in charge of it may seek to suspend standing orders to enable debate on the motion. Party leaders and independent senators usually have on the Notice Paper contingent notices of motion for the suspension of standing orders in these circumstances, meaning that the suspension motion requires only a simple majority in favour, not an absolute majority (see SO 209). Debate on motions for the suspension of standing orders is limited to 30 minutes in total, with five minutes per speaker. At the very least, a senator who moves a suspension of standing orders on refusal of formality has 5 minutes to put the case for why the motion should be debated and the normal routine of business set aside for that purpose. Common practice is for all groups in the Senate to put their position on the record on both the substantive motion and their reasons for voting for or against the suspension.

While the motion for suspension may be lost, the denial of formality to several motions on any day can potentially consume a significant amount of time that would otherwise be available for government business. If the suspension motion is agreed to, there is no limit on the time that may then be spent on debating the substantive motion. An alternative to denying formality is to vote down the motion. This saves time but means that complex and sensitive matters are forced to a vote without proper consideration.

Common complaints about the formal business procedure include:

• that it forces senators to take positions on certain matters without the opportunity to explain those positions or move amendments to reflect them;

• that there are too many notices of motion on complex matters for sufficient consideration by senators whose votes may be instrumental in determining the result;[7]

• that there is insufficient time to consider the large quantity of complex notices of motion given;

• that the procedure is particularly unsuitable for foreign policy motions.[8]

In response to complaints of this nature in recent years, the Procedure Committee has examined the process on several occasions but initially refrained from making any suggestions that would limit it in any way.[9]

In 2004, however, the committee considered a comprehensive paper on the procedure and defined the area of concern in the following terms:

Briefly, the moving of motions to suspend standing orders to give precedence to motions which are refused formality virtually compels senators to vote on a motion, or to explain why they should not be compelled to vote on the motion at that time, even where only a very small minority of senators seeks to compel a vote on the motion.[10]

The committee focused on measures to ensure that attempts to force a vote on a motion which is denied formality would not be permitted unless supported by a reasonable number of senators. A majority of the committee recommended a trial of an amendment to SO 66 as follows:

1. If objection is made to a motion being taken as a formal motion, a proposal to suspend standing orders to allow the motion to be moved shall not be received by the President and put to the Senate unless 5 senators, including the mover of the motion, rise in their places to indicate support for the suspension motion.

The amendment was agreed to on 11 May 2004 on a trial basis till the end of the June 2004 sittings.[11] It was not used during that time as the only motions which were denied formality were government business notices of motion.[12] As government business notices are called on in the normal course of business, there is no need to suspend standing orders to create an opportunity for their consideration. The government gave notice of a motion to renew the amendment and another temporary order on 3 August 2004 but before it was moved the following day, the notice was amended, by leave, to omit reference to the amendment to formal business procedures.[13] The idea has not subsequently been revived. The majority of notices of motion are dealt with as formal business and denials of formality for general business notices are at present relatively rare.